E. Greenwich Inst. for Sav. v. Shippee

• Decision Date: 20 July 1898
• Citation: E. Greenwich Inst. for Sav. v. Shippee, 40 A. 872, 20 R.I. 250 (R.I. 1898)
• Parties: EAST GREENWICH INST. FOR SAVINGS v. SHIPPEE et al.
• Court: Rhode Island Supreme Court

40 A. 872

20 R.I. 250

EAST GREENWICH INST. FOR SAVINGS

v. SHIPPEE et al.

Supreme Court of Rhode Island.

July 20, 1898.

Bill by the East Greenwich Institution for Savings against Mabel A. Shippee and others to determine the disposition of a surplus.Judgment awarding the same to defendantDavid L. Rose, as guardian of certain defendants.

S. W. K. Allen, for complainant.

C. J. Arms and W. B. Vincent, for respondents.

ROGERS, J.This is a bill of interpleader to determine to whom shall be paid the sum of $213.74, which is the surplus remaining in the mortgagee's hands after satisfying the mortgagee's claim out of the proceeds of a mortgagee's sale of certain real estate, and which sum is now in the registry of the court, less $25, allowed to the plaintiff for expenses of this suit, the sum now in the registry of the court awaiting further order being $188.74, with interest that may accrue.Thaddeus Sprague and Sarah M. Sprague, his wife, were the parents of two children, the defendantMabel A. Shippee and one Thaddeus Sprague.The said Sarah M. Sprague, being seised and possessed of a certain lot of land, joined with her husband in a mortgage of the same to the plaintiff, to secure the husband's promissory note for $100.Before the payment of said mortgage note, said parents died intestate, leaving said two children heirs of the said estate, incumbered, as it was, by said mortgage.As both of said children were infants, the said defendantDavid L. Rose was appointed guardian of the persons and estates of said minors.The only estate of the wards coming under the control of the guardian was the land referred to in the bill, and sold by the plaintiff as mortgagee, under the power of sale contained in said mortgage.The guard-Ian filed his final account with the estate of his ward, the defendantMabel A. Shippee, after she arrived at age; and on appeal to the supreme court it appeared that the guardian of the two wards (i. e. the defendantMabel A. Shippee, and her brother, Thaddeus Sprague) received $552, and expended on the estate $440.81, leaving a balance to the credit of the wards of $111.19, one-half of which, viz. $55.59, belonged to the defendantMabel A. Shippee's estate; that the said guardian, the defendantDavid L. Rose, had spent for her the sum of $166.32, leaving a balance due the said guardian of $110.73, and adding probate charge as allowed by the supreme court of $17.88 made a balance expended for said Mabel A. Shippee by the guardian, over credits, of $128.61.In September, 1894, nearly a year after the said Mabel came of age, the guardian asked and obtained from the probate court of East Greenwich leave to sell the real estate of said wards; and though he filed his bond with sureties, as required by law, he never sold said real estate under said power; but the said estate having been sold by the mortgagee, under the power of sale contained in said mortgage, the said David L. Rose claims that the plaintiff and mortgagee, the said East Greenwich Institution for Savings, should pay the surplus in its hands to him, he being entitled, as guardian of Thaddeus Sprague(who is still a minor), to receive one-half of said surplus; and the other half of said surplus he claims to be entitled to receive as guardian of said Mabel A. Shippee, though now of age, that he may apply it towards the payment of the balance of expenditure made by him as guardian of the said Mabel.The defendantMabel A. Shippee claims that, being of age, she is the proper person to receive the one-half of the surplus of the proceeds of the mortgagee's sale not required to pay the mortgage; that David L. Rose had no authority of law to expend for her more than the income of said estate, except upon leave first had and obtained from the proper tribunal; and that, having expended more than the income without such leave first having been obtained, he cannot now be allowed to reimburse himself out of the proceeds of her real estate, however sold.The counsel for the respondentMabel A. Shippee further claims that, this being a suit of interpleader, questions like those sought to be raised here by the respondentDavid L. Rose are improper; that Mrs. Shippee, being now of age, should have one-half of said sum of $188.74, to wit, $94.37, paid to her, and then said Rose could bring against her such action or proceedings as he sees fit.The plaintiff of record in this suit has paid the surplus in his hands, to which it makes no claim, Into the registry of the court, less the amount allowed for expenses, and now has no more interest in the disposal of the fund than if it had never had anything to do with it.There is no question made by anybody but that said Rose is still the guardian of Thaddeus Sprague, who continues to be a minor, and who would be entitled to the custody of the $94.37 due said minor's estate.The said Mabel A. Shippee is now, and for several years has been, of age and sui juris, has had notice of the pendency of this suit, and is represented here by counsel, who has been fully heard; and we can see no good reason, either technical or substantial, why the real question arising between Mrs. Shippee and her guardian (or former guardian, to use her counsel's phrase) should not be decided, and thus save a multiplicity of suits.

The respondent Shippee contends that there is no proof of indebtedness from her or her estate to the said David L. Rose as guardian; that the guardian's account allowed by the court of probate, or by this court on appeal therefrom, is no proof of indebtedness, but, at most, simply exonerates him from further liability to the ward's estate; and relies largely on Richards' Case, 6 Serg. & R. 462, decided in 1821, and in which Gibson, J., uses the expression, "The guardian is to account with the ward, not the ward with the guardian."Several other cases, all resting upon Richards' Case, have been cited in support of that contention.The supreme court of Pennsylvania, in 1853, in Shollenberger's Appeal, 21 Pa. St. 337, commented upon Richards' Case, and gave it a very different aspect from what it had assumed theretofore.In Shollenberger's Appeal the question was whether a guardian, on the settlement of whose account in the orphans' court a balance in his favor was decreed, could, by the orphans' courtact of 1832, have a writ of fieri facias to collect the balance out of the ward's estate.The court reversed the decision of the lower court, and granted the writ of fieri facias against the ward's estate, and, in its opinion, thus referred to Richards' Case: "Woodward, J.Under the acts of assembly before 1821, it was decided in Richards' Case, 6 Serg. & R. 464, that the orphans' court had no power to decree a balance against a ward in favor of his guardian; that the guardian is to account with the ward, and not the ward with the guardian; that the guardian cannot cite the ward to a settlement, but, if he has advanced beyond what he has received, he may, if the expenditure were proper and fitting to the estate and condition of the ward, create a responsibility that would be enforced elsewhere.The reasons on which this rule was rested were drawn from the inadequacy of the legislative provisions for notice to the ward; and it was considered to be going far enough to say the confirmation of the account shall discharge the guardian without directly Involving the ward in personal liability.It does not appear from the report of the case how the ward was brought to settlement, whether by citation, or his own desire to be discharged, nor whether he was guardian of the estate or of the persons of the minors; but his accounts presented to the orphans' court were referred to auditors, who reported a balance due to him from each of the children except one, amounting in the aggregate to $5,000.The court having dismissed the exceptions and confirmed the report, the wards offered to appeal to the supreme court; but the orphans' court...